TMI Blog2013 (1) TMI 611X X X X Extracts X X X X X X X X Extracts X X X X ..... edit and the two issues are totally independent issues, the order of the Commissioner (Appeals) can be treated as two orders-one in respect of export rebate and the other in respect of classification or valuation or Cenvat credit and only in such a case different portions of the order can be challenged before different authorities. The eligibility of the rebate claim depends on the classification of goods. The same impugned order passed by the Commissioner(A) cannot be subject matter of two different appeals before two different appellant forums. Once the appeal filed there against before Govt. of India as revision application stands rejected by the Joint Secretary on merits, the impugned order cannot be challenged for the second time before Tribunal for consideration of the classification issue. Since the Commissioner (Appeals)'s order had been challenged before the right forum by filing revision application before Jt. Secretary (RA), the facts and circumstances of the case, there is no justification for condoning the delay of 948 days in filing of the appeal, Moreover, when the Jt. Secretary (RA) has rejected the Department's revision application against the Commissioner (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decided together by single order by the lower authorities. In terms of section 35EE of the Central Excise Act the issue relating to rebate claim filed under Rule 18 of the Central Excise Rules, 2002 comes in the jurisdiction of this authority. Whereas appeal against Order-in-Appeal passed by Commissioner(Appeal) on the issue of classification is to be filed before CESTAT. Here, the eligibility of the rebate claim depends on the classification of goods. Since Commissioner (Appeals) has classified the goods under tariff heading 7326.90 where there was no exemption from payment of duty, the rebate claims were rightly held admissible. The exemption notification No.10/03-CE, dtd. 01.03.03 as amended exempted goods of heading No.7323 from payment of duty and in terms of provisions of section 5A (1A) of Central Excise Act no duty can be paid on exempted goods. 9. Government is therefore is of considered opinion that the rebate claims is not deniable to the Respondent party as the above Order-in-Appeal remains operational in respect of case issue of classification of impugned export goods unless and until the same is set aside by the Tribunal with respect to the issue of classificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decided both the issues of classification and eligibility for rebate. However as per the provisions of section 35B of the Central Excise Act, the appeal from the impugned order lies with the Tribunal in the matter of classification and with the Central Government in the matter of eligibility for rebate as per provisions of Section 35EE of the Act. The Authority exercising this power on behalf of the Central Government is Joint Secretary (Revision Application), Ministry of Finance, GOI (J.S. for short). Revenue filed a Revision application with J.S in the prescribed time. But Revenue did not file an appeal with the Tribunal in the matter of classification. The J.S. considered the matter and passed an order rejecting Revenue's application on the ground that classification of goods is not challenged before the appropriate forum and once classification remains unchallenged the rebate claim cannot be rejected. It is not as if classification was never challenged. It was a matter of dispute under, adjudication order, order-in-appeal and revision application. However J.S. does not have jurisdiction to hear appeals on classification. The operative sentence of the order read "The Revision a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssues are to be decided. This cannot be a reason to deny the right of the revenue to set right an error in classification (assuming that such error is caused in the impugned order) of the goods. Classification of goods is a matter of recurring consequence and such matters cannot be allowed to rest for such technicalities. I do not see anything in the statute or general principles of law which can be interpreted to block processes to set right such errors. 13. I am of the view that the following decisions, are relevant to the context; (i) Collector, Land Acquisition Anantnag and Another Vs. Mst. Katiji and others - 1987 (28) E.L.T, 185 (S.C.) (ii) Ksharchhaya vs CC 1989 (42) E.L.T. 82 (Tribunal) 13. Therefore I am of the view that in the facts and circumstances of the case the delay is condonable. 14. Thus the points of differences are,- (i) Whether the last sentence of the order of the J. S. is of any consequence in deciding the issue (ii) Where a matter involves two issues and the statute provides appeals to two different authorities, each having authority to decide only one of the issues, is the argument that only one appeal will lie against one orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s entitled to claim rebate on the exported goods which were exempted from the payment of Central Excise by virtue of Notification No. 10/2003-CE dated 01.3.2003 as amended. The classification of goods was never the issue of dispute which has been decided by the Appellate Authority. It is undisputed that the party exported the goods declaring them as utensils and non-utensils of steel articles and under Chapter Heading 7323 of Central Excise Tariff Act, 1985. They availed DEPB benefits in respect of the export made by them. The goods were classified by the party and were duly accepted by the department, as such there was no dispute regarding the classification of exported goods. The party while applying for rebate claim re-classified the goods at their own and placed these goods under Chapter Heading 7326.90 of Central Excise Act, 1985, which was neither justified nor acceptable. The dispute pertains to the fact that the goods exported under Chapter Heading 7323 of the Central Excise Tariff Act, 1985 are exempted from the payment of Central Excise duty by virtue of Notification 10/2003-CE dated 01.03.2003 as amended. When the goods are exempted from the payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on under heading 7323 and declare the classification under heading 7326 as illegal; (c) If the Tribunal holds otherwise, in favour of the respondent, the respondent may be directed to deposit DEPB benefit claimed and received by them in respect of exported goods, in question, as in the shipping bill the respondent declaring the classification of the goods in question under heading 7323 have claimed the benefit of DEPB. 19. Since the normal limitation period for filing appeal before the Tribunal is three months from the date of communication of the order, the Committee also directed for filing an application for condoning the delay. 20. In pursuance of the above directions of the Committee of Commissioners, this appeal has been filed by the Asst. Commissioner, Central Excise, Rohtak along with application for condoning the delay of 948 days in filing of the appeal. The delay is sought to be condoned on the ground that the order of the Commissioner (Appeals) was earlier challenged before a wrong forum. 21. The application for condonation of delay was heard on 23.11.2011. While the Member (Judicial) in her order dated 28.11.2011 held that delay is not condonable and there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2008 (232) ELT 335 (Tri.-Bang.); that the Apex Court in the case of Collector, Land Acquisition Anantnag Another vs. MST. Katiji Ors., reported in 1987 (28) ELT 185 (S.C.) has held that liberal approach is needed in condonation of delay as refusing the condonation of delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated; that the respondent had themselves classified Ice buckets and Waste baskets under heading 7323 in the export shipping bills filed by them and on that basis they have filed claim for DEPB benefit; that when for the purpose of DEPB benefit the respondents have claimed classification of the goods, in question, under heading 7323, for the purpose of export rebate under Rule 18 of the Central Excise Rules, they cannot claim classification under heading 7326; and that the Commissioner (Appeals)'s order classifying the goods, in question, under heading 7326 is incorrect. With regard to the first points of difference in para 14 of the order of the referring Bench, he pleaded that the last sentence of the order of Jt. Secretary (RA) is of no consequence as the same is dependent upon the issue of classificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner (Appeals); and that in any case, there is no justification for condoning the delay of more than 900 days in filing the appeal, as this is not the case where delay was on account of challenging the impugned order before a wrong forum. He, therefore, pleaded that delay is not condonable. 27. I have carefully considered the submissions from both sides and perused the records. 28. Coming to the first point of difference - "whether the last sentence of the order of Jt. Secretary (RA) is of any consequence in deciding the issue", it would be worthwhile having a look at para 9,10 11 of the order dated 7.3.2011 of the Jt. Secretary (RA): "9. Government is, therefore, considered opinion that the rebate claims is not deniable to the Respondent party as the above Order-in-Appeal remains operational in respect of case issue of classification of impugned export goods unless and until the same is set aside by the Tribunal with respect of the issue of classification of goods. 10. The Revision Application is thus rejected for being devoid of merits. 11. So, ordered." 29. From the perusal of Paras 9,10 11 of order of the Jt. Secretary (RA), it is clear that the oper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Respondent. Even if for the decision on the question of rebate any issue relating to classification is to be decided, that would not change the forum of appeal. Only in a situation where the Commissioner (Appeals) in the same order decides two issues one issue relating to export rebate and other issue relating to classification/valuation or Cenvat credit and the two issues are totally independent issues, the order of the Commissioner (Appeals) can be treated as two orders-one in respect of export rebate and the other in respect of classification or valuation or Cenvat credit and only in such a case different portions of the order can be challenged before different authorities. But in a situation where the main issue is export rebate covered by first proviso to Section 35B(1) and if for deciding the issue relating to export rebate, some other issues have also to be decided, the Tribunal would not have jurisdiction and that order of Commissioner (Appeals) can be challenged only before the Jt. Secretary (RA) by filing a revision application. 31. As regards third point of difference, since the Commissioner (Appeals)'s order had been challenged before the right forum by filing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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